Perpignani v. Vonasek

• Decision Date: 25 February 1986
• Docket Number: No. 84-2445,84-2445
• Citation: 386 N.W.2d 59,129 Wis.2d 478
• Parties: Marino PERPIGNANI, Plaintiff-Respondent, v. Thomas VONASEK, as personal representative of the Estate of Bernt S. Brekke, Deceased, and Helen C. Brekke, Defendants and Third-Party Plaintiffs-Respondents, David A. Pieper and Arleen J. Pieper, his wife, Third-Party Defendants-Appellants, Helen Rasmussen, Third-Party Defendant-Co-Appellant, Washburn County Abstract Company, Third-Party Defendant. *
• Court: Wisconsin Court of Appeals

Page 59

386 N.W.2d 59

129 Wis.2d 478

Marino PERPIGNANI, Plaintiff-Respondent, v. Thomas VONASEK, as personal representative of the Estate of Bernt S. Brekke, Deceased, and Helen C. Brekke Defendants and Third-Party Plaintiffs-Respondents David A. Pieper and Arleen J. Pieper, his wife, Third-Party Defendants-Appellants Helen Rasmussen, Third-Party Defendant-Co-Appellant Washburn County Abstract Company, Third-Party Defendant.^*

No. 84-2445.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 28, 1985.

Opinion Released Feb. 25, 1986.

Opinion Filed Feb. 25, 1986.

Joe Thrasher and Weisel, Thrasher, Doyle & Pelish, Ltd., Rice Lake, for third-party defendants-appellants.

Hugh H. Gwin, Thomas A. Dahle and Gwin & Gwin, Hudson, for third-party defendant-co-appellant.

Edward J. Coe and Coe, Dalrymple, Heathman & Arnold, S.C., Rice Lake, for plaintiff-respondent.

Before CANE, P.J., and DEAN and LaROCQUE, JJ.

LaROCQUE, Judge.

David and Arleen Pieper, Helen Rasmussen, Helen Brekke, and Thomas Vonasek ¹ appeal a judgment awarding Marino Perpignani ownership of relicted land ² and rejecting Brekke's claim of adverse possession under color of title. Although the trial court did not abuse its discretion in its choice of survey methods, we conclude that it failed to apply the appropriate burden of proof and presumption of adversity and erroneously denied Brekke's claim of adverse possession under color of title. We therefore reverse the judgment.

At issue in this appeal is ownership of relicted land lying between the present shoreline of Shell Lake and the original meander line ³ of Government Lots 2 and 3. Government Lot 3 is west of Government Lot 2. The Brekkes acquired their land in two conveyances, one from the Piepers in 1960, and the other from Rasmussen in 1972. Line B on Diagram 1 is the line originally though to be the east line of Government Lot 3, owned by Perpignani, and line D is the east line as established by the trial court. ⁴ The parcel conveyed by the Piepers lies between lines B and C, and the lot conveyed by Rasmussen lies to the east of line C. As illustrated by the shaded area, almost the entire lot transferred by the Piepers to the Brekkes, and a small portion of the lot transferred by Rasmussen, is relicted land whose ownership is at issue. Both conveyances to Brekke were ostensibly part of Government Lot 2. After the reliction was apportioned by the trial court, it became a part of Government Lot 3. Excerpt from Exhibit 16

DIAGRAM 1

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

After the Brekkes obtained the lot from the Piepers, they placed a mobile home on it and used it as a summer retreat. They maintained the lot by clearing brush and mowing the grass in certain areas. Eventually they built a house and garage on it.

The trial court properly apportioned the reliction. Several different rules may apply in Wisconsin for establishing the extension of boundaries between contiguous shoreline properties. ⁵ See Jansky v. City of Two Rivers, 227 Wis. 228, 240, 278 N.W. 527, 532 (1938); Northern Pine Land Co. v. Bigelow, 84 Wis. 157, 164, 54 N.W. 496, 498 (1893); Nosek v. Stryker, 103 Wis.2d 633, 635-38, 309 N.W.2d 868, 870-72 (Ct.App.1981). Which method to follow depends on the particular circumstances of a given case. Rondesvedt v. Running, 19 Wis.2d 614, 618, 121 N.W.2d 1, 4 (1963). Courts, however, are obliged to avoid inequitable results when apportioning relicted lands. Id.

The two applicable choices in this dispute are the straight line method and the pie or cove method. Under the straight line method, advocated by Perpignani, the original property line is extended to the present shoreline. See Nosek, 103 Wis.2d at 635, 309 N.W.2d at 870. This method is used where the shoreline approximates a straight line and the property division line meets the shore at a right angle. Id.; see Diagram 1, line D. As illustrated, division by this method causes a portion of Brekke's lot, including her house and a corner of her garage, to encroach onto Perpignani's lot.

The pie method, on the other hand, first locates the center of a round body of water, or a cove. A line is then projected from that point to a point on the shore where the lot line and the water line at the time of the original government survey meet, much in the same way pie is cut. Curtis M. Brown, Boundary Control and Legal Principles § 10.24(d), at 311 (2d ed. 1962). Under this method, Brekke does not encroach onto Perpignani's property. See Diagram 1, line A.

Two surveyors testified at trial. Phillip Lysdahl, who advocates the straight line method, stated that the pie method requires location of the shoreline at the time of the original government survey in the 1850's, which is apparently undeterminable here. Lysdahl also opined that the shoreline directly abutting the disputed property approximates a straight line and that the straight line method could therefore be properly applied. Steven Johnson, on the other hand, disputed many of Lysdahl's claims and advocated the pie method. Johnson, however, admitted that the specific section of shoreline in question resembles a straight line.

We conclude that the trial court did not abuse its discretion by choosing the straight line method. See State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983). In the absence of a showing that the pie method is the only one recognized in surveying practice and is the only result possible, it is within the province of the trial court to determine the weight and credibility of the testimony of these two expert witnesses and to choose which method to follow. See Rosen v. Ihler, 267 Wis. 220, 225, 64 N.W.2d 845, 847 (1954).

Having failed to obtain the land by survey, Brekke next argues that she is entitled to the land because of her adverse possession under color of title. The statutes governing the adverse possession claim are those in existence at the time the claim accrued, secs. 893.06 and 893.07, Stats. (1971). ⁶ This conclusion is drawn from the language of sec. 990.07, Stats., ⁷ which establishes the effective dates of statutes of limitation. Adverse possession statutes are statutes of limitations. See 3 Am.Jur.2d Adverse Possession § 2 (1962). This determination is important because later amendments require a filing of the deed within thirty days, something Brekke failed to do. See sec. 893.26, Stats (1979).

The trial court erroneously declared an absence of color of title because the Piepers' deed to Brekke begins with the description "That part of Government Lot Two (2)," even though the rest of the description accurately plats the land Brekke has occupied since 1960. Because the trial court divided the relicted land by the straight line method, the majority of that land now falls in Lot 3. The trial court reasoned that Brekke's deed therefore does not describe the land in question and that there is no color of title.

This analysis is faulty. ⁸ Color of title is that which gives the semblance or appearance of title; however, by reason of defect not appearing on the deed at the time of conveyance, the writing does not in fact amount to true title. 3 Am.Jur.2d Adverse Possession § 96 (1962). To constitute color of title, Brekke must occupy and possess the premises described in the deed. See New v. Stock, 49 Wis.2d 469, 478, 182 N.W.2d 276, 280 (1971). It is undisputed that the deed accurately, by metes and bounds, describes the lot that Brekke has occupied since 1960. The reference in the deed to Lot 2 does not poison the otherwise accurate description. The fact that Brekke's lot was only later judicially decreed to be part of Government Lot 3, and not Lot 2, is the defect causing the deed to pass only color of title and not actual title.

We turn now to the trial court's determination that the property was not held in an open, notorious, and hostile manner. Where, as here, a claim of adverse possession is made under color of title, it is presumed that a continual ten-year occupation and possession of the premises is adverse. Polanski v. Town of Eagle Point, 30 Wis.2d 507, 511-12, 141 N.W.2d 281, 283 (1966). Conversely, absent color of title, the rule is that all reasonable presumptions must be made in favor of the true owner against an adverse claimant. Allie v. Russo, 88 Wis.2d 334, 343, 276 N.W.2d 730, 735 (1979). In such a case, the burden of proof is on the adverse claimant, who must show by clear and convincing evidence that the physical possession was "hostile, open and notorious, exclusive and continuous for the statutory period." Id. Because Brekke had color of title, the rebuttal presumptions and burdens normally favorable to Perpignani, the true owner, therefore shift to favor Brekke, the adverse claimant. See Illinois Steel Co. v. Budzisz, 139 Wis. 281, 299-300, 119 N.W. 935, 938-39 (1909). The question of Brekke's occupation and possession of the disputed property must therefore be viewed most favorably to Brekke. It is also apparent that Perpignani had the burden to present clear and convincing evidence that the Brekkes' occupation did not fulfill the conditions of sec. 893.07, Stats. (1971). A review of the trial court's memorandum decision convinces us that it did not consider this shift in the burden of proof or rebuttable presumptions.

The applicable statutory provisions in this case are whether the land in question "has been usually cultivated or improved" by Brekke and whether the land "has been used for the ordinary use of the occupant." Section 893.07(1) and (3), Stats. (1971). "Usually improved" means to put to the exclusive use of the adverse claimant as the true owner might use such land in the usual course of events. Illinois Steel Co. v. Bilot, 109 Wis. 418, 84 N.W. 855, reh'g denied, 109 Wis. 430, 441, 85 N.W. 402, 406 (1901). Common law factors are also relevant in determining whether the possession is sufficiently adverse. Pierz v. Gorski, 88 Wis.2d 131, 136-37, 276...